Search and Seizure

  • July 12, 2013
    Guest Post

    by Joseph Jerome, Legal and Policy Fellow, Future of Privacy Forum

    Harvard Law Professor Lawrence Lessig, in a piece for The Daily Best, wrote "Trust us' does not compute," in discussion about government national security surveillance programs. After a contentious, technical discussion at the ACS national convention of both the NSA's PRISM program and the cellular metadata orders, a panel of privacy law scholars were forced to concede that "trust us" is today's status quo when it comes to programmatic government surveillance.

    It wasn't supposed to be this way. When the Foreign Intelligence Surveillance Act was first passed in 1978, the law was designed to "put the rule of law back into things," explained Professor Peter Swire, co-chair of the Tracking Protection Working Group at the W3C and the first Chief Counselor for Privacy at OMB. The emergence of the Internet, however, changed everything. Intelligence agencies were faced with a legal framework that could not account for situations where "games like World of Warcraft [could be] a global terrorist communication network," he said.

    But even as communications technology has been made to serve bad actors, it has also ushered in a Golden Age of surveillance. Modern technology today can easily determine an individual's geolocation, learn about an individual's closest associates, and connect it all together via vast databases. Within the federal government, without strong champions for civil liberties, the availability of these technologies encouraged government bureaucracy to take advantage of them to the full extent possible. Absent outside pressure from either the Congress or the public, "stasis sets in," Swire said.

    Yet while service providers collect vast amounts of data about individuals, a combination of business practicalities and Fair Information Practice Principles which stress retention limits and data minimization mean that businesses simply do not keep all of their data for very long. As a result, the government has used Section 215 of the PATRIOT Act to collect and store as much information as possible in the "digital equivalent of the warehouse at the end of Indiana Jones," said Professor Nathan Sales, who largely defended the government's efforts at intelligence gathering.

  • July 1, 2013

    by Jeremy Leaming

    Since disclosure of classified documents revealing the scope of United States’ surveillance programs there has been a collective shrug of the shoulders among mainstream or elite media. As noted here, the verdict from many in the mainstream media is that the surveillance programs revealed by Edward Snowden are a fair or necessary trade-off – we must give up a bit of privacy to ensure that the nation is safe from terrorists.

    Indeed, much of the focus of broadcasters, such as NBC’s David Gregory, has centered on where Snowden is and whether The Guardian journalist-columnist Glenn Greenwald should be viewed as aiding and abetting Snowden. Recently during a “Meet the Press” segment, Gregory asked Greenwald why he shouldn’t be “charged with a crime.” Greenwald, who along with other Guardian staffers, has reported on the material disclosed by Snowden, was hardly rattled by the broadcaster’s preening. Greenwald later tweeted, “Who needs the government to try to criminalize journalism when you have David Gregory to do it?” (For an entertaining takedown of Gregory, see Frank Rich’s response to a question from New York magazine about Greenwald’s role in reporting on the two massive surveillance programs that collect and store telephone communications and Internet communications of Americans. For example, Rich asked, “Is David Gregory a journalist? As a thought experiment, name one piece of news he has broken, one beat he’s covered with distinction, and any memorable interviews he’s conducted that were not with John McCain, Lindsey Graham, Dick Durbin, or Chuck Schumer.”)

    But outside the elite U.S. media, many others are not ready to let this one go, and not just because more information about the nation’s spying apparatus keeps coming. The Guardian recently published NSA documents that show widespread spying of the “European Union mission in New York and its embassy in Washington.” In fact the NSA documents reveal that 38 embassies and missions are being spied on by America’s ever-growing and unwieldy intelligence community. The disclosure is not going over well with some the country’s allies. Germany’s Chancellor Angela Merkel, for instance, said, “We are no longer in the cold war. If it is confirmed that diplomatic representatives of the European Union and individual European countries have been spied upon, we will clearly say that bugging friends is unacceptable.”

    Capturing and storing massive amounts of information on Americans’ communications should also be unacceptable or least spark sharper, ongoing debate, regardless of how we learned about the massive surveillance schemes. Without those disclosures we’d likely still be in the dark about those programs. In March, Sen. Ron Wyden (D-Ore.) asked Director of National Intelligence James Clapper during a hearing whether the NSA was collecting “any data at all on millions or hundreds of millions of Americans?” As Salon’s David Sirota notes, Clapper responded, “no, sir.”  

    Recently, I sat down with Georgetown Law Professor David D. Cole, a constitutional law and national security expert. (See his wrap-up of the Supreme Court’s latest term for The Washington Post.) I asked him to respond to pundits who argue that the surveillance programs are not terribly troubling and whether he thought the Foreign Intelligence Surveillance Court is a strong enough check on the intelligence community’s voracious appetite for more information about Americans.

    Cole (pictured) said he found the disclosures of the surveillance programs, “stunning and I think raise really serious questions both about our governance and about our privacy. They’re stunning; because I don’t think before The Guardian broke the story that anybody thought that the Patriot Act authorized the government to pick up phone data every time any American picks up the phone to call anywhere.”

    Some pundits express shock that civil rights groups or civil liberties advocates should be stunned by the NSA programs and many argue that they are harmless infringements on privacy that are outweighed by the government’s interest in protecting national security.

    Cole provides a counter.

    “I think there is a great deal to be concerned about,” he said. “We’ve seen in the past that these kinds of tools while adopted in the name of fighting national security inevitably get used more broadly, and abused to target people who the administration finds to be inconvenient or a dissenter or an enemy as President Nixon labeled them. So Cointelpro [Counterintelligence Program], the FBI’s program was initially an anti-Communist program and ultimately involved spying on people in the civil rights movement, the anti-war movement, the women’s movements, and the environmental movements. We don’t want our government to be engaged in that kind of practice and the best way to ensure that it isn’t is to ensure that it has strict limits on its surveillance powers.”

    Regarding the Foreign Intelligence Surveillance Court, which hears NSA surveillance requests in secret, Cole said it was a check, but that we should know more about it.

    “I think the fact the court exists [FISA Court] is a check in-and-of-itself, even if it ultimately, in almost all instances says yes,” Cole said. “However, I think it’s far too secret. Certainty, ongoing operations; there’s a need for secrecy. But the interpretations that the Court has given to the statutes that we think are constraining the government – we ought to know what those interpretations are.”

    While mainstream media outlets concentrate on the whereabouts of Snowden, bloggers, the ACLU and some members of Congress, such as Wyden, are calling for the government to provide more information about the NSA and its spying programs. At some point a few in the mainstream media might also catch on to what is important in this matter.

    See Cole’s entire talk below or by visiting this link.  

  • June 10, 2013

    by Jeremy Leaming

    Apologists of the federal government’s massive surveillance programs are pushing us to read David Simon’s lengthy explanation of why the programs are not bad. Simon, creator of “The Wire,” is dumbstruck -- how can Americans be so shocked. Instead those who can’t see things like Simon are dolts.

    “You would think,” Simon writes, “that the government was listening in to secrets of 200 million Americans from reaction and hyperbole tossed around.” There aren’t enough American spies to do such a thing, and why in the hell would they want to, he maintains. And then he reminds us that Americans supported the Patriot Act, don’t we remember? And besides, the Foreign Intelligence Surveillance Act which created the FISA Court provides judicial review. The president said the same thing last week. Don’t worry, a highly secretive court is ensuring that those thousands of requests from the nation’s surveillance apparatus are being checked by the FISA Court. 

    But Simons’ long-winded, sanctimonious blather, while providing comfort to supporters of the massive intelligence community, shuns or shows great ignorance of the Constitution. Really, why have a Fourth Amendment at all, or the other amendments, such as the First, that are intended to limit the government and provide us reasonable expectations of privacy. Toss those amendments aside already.

    The ACLU and other supporters of liberty are not likely to be swayed by a television creator’s wobbly arguments supporting an increasingly unweildy intelligence apparatus.

    Today, the ACLU and Yale Law School’s Media Freedom and Information Access Clinic lodged a motion with the FISA Court calling on it to release “its opinions on the meaning, scope, and constitutionality” of a section of the Patriot Act that provides the federal government ability to easily obtain and stockpile information on Americans’ activities.

    ACLU Deputy Legal Director Jameel Jaffer said, “In a democracy, there should be no room for secret law. The public has a right to know what limits apply to the government’s surveillance authority, and what safeguards are in place to protect individual privacy.”  

    Daniel Ellsberg, who leaked a lot of top secret government material on the Vietnam War, also weighed in with a piece for The Guardian, calling Edward Snowden’s release of classified nformation about the surveillance programs likely the most important in history.

    Simon, in his post, writes about probable cause, saying it’s needed before the FISA Court will give the intelligence apparatus what it wants. He’s wrong. The FISA Court is essentially a rubber stamp. As Ellsberg says, “The government claims it has a court warrant under FISA – but that unconstitutionally sweeping warrant is from a secret court, shielded from effective oversight, almost totally deferential to executive requests. As Russell Tice, a former National Security Agency analyst put it: ‘It is a kangaroo court with a rubber stamp.’”

    And then there’s Glenn Greenwald, the columnist, attorney, who along with Ewen MacAskill and Spencer Ackerman broke the first story about the NSA and FBI sweeping up and collecting telephone information. He’s rather tenacious, and is promising more information about the machinations of American spies.

  • March 20, 2013

    by Jeremy Leaming

    While the Obama administration has justifiably been knocked for its secretive and deadly use of Reaper and Predator drones to kill suspected terrorists overseas, the private and public use of drones here at home is in need of some serious discussion say groups and individuals concerned about eroding privacy rights.

    During a Senate Judiciary Committee hearing today a law professor and Amie Stepanovich of the Electronic Privacy Information Center (epic.org) urged lawmakers to revamp the nation’s privacy laws to ensure that public and private use of drones do not shred what privacy rights we have left.

    Ryan Calo, assistant professor of law at the University of Washington School of Law, told the committee that citizens have good reason to be concerned about the increasing use of drones for an array of purposes. During his testimony, Calo reiterated the need for the nation to update laws to protect privacy – technology is fast outpacing laws protecting privacy.

    “Drones have a lot of people worried about privacy – and for good reason,” Calo told the Senate committee. “Drones drive down the cost of aerial surveillance to worrisome levels. Unlike fixed cameras, drones need not rely on public infrastructure or private partnerships. And they can be equipped not only with video cameras and microphones, but also the capability to sense heat patterns, chemical signatures, or the presence of a concealed firearm.

    “American privacy law,” he continued, “meanwhile, places few limits on aerial surveillance. We enjoy next to no reasonable expectation of privacy in public, or from a public vantage like the nation’s airways. The Supreme Court has made it clear through a series of decisions in the nineteen-eighties that there is no search for Fourth Amendment purposes if an airplane or helicopter permits officers to peer into your backyard. I see no reason why these precedents would not extend readily to drones.” See Calo’s written testimony here.    

    The drones discussed at today’s hearing are not like the types employed overseas in ongoing counterterrorism operations.  (A subcommittee led by Sen. Richard Durbin (D-Ill.) will explore the drone war and its intersection with constitutional rights in April.) The drones are much, much smaller and have been used for police surveillance and by public safety agencies to assess damages from storms, study hurricanes, tornados and flooding for example. Many of those drones weigh mere pounds and are operated in a limited fashion. Michael Toscano, president & CEO of the Association for Unmanned Vehicle Systems International (AUVSI), told the committee that the industry does not support “weaponization” of civil drones. (He also informed the lawmakers that the industry does not refer to the technology as drones, they may be pilotless, but they are operated by humans from nearby control centers. (Sen. Leahy said he and others on the committee would refer to drones as drones regardless of what the industry dubs them.)

     

  • March 7, 2013

    by Jeremy Leaming

    Sen. Rand Paul, (R-K.Y.) may be a strident, sometimes over-the-top Tea Party supporter and fervent antigovernment advocate, but his filibuster of President Obama’s pick to head the C.I.A. was principled. He did so by actually taking to the Senate floor to explain, albeit in very long fashion, his opposition to the administration’s nominee C.I.A. John Brennan, who was confirmed today for the position.

    Paul’s action was far different than the Republican obstructionists’ baseless and practically silent filibuster of Caitlin Halligan to a seat on the U.S. Court of Appeals for the District of Columbia Circuit. As Greg Sargent writes in The Plum Line, “Paul’s filibuster was born out of concern about an actual issue – objections to Obama’s approach to drone warfare that are shared on both sides of the aisle.” [See below for more commentary on the Obama administration’s secretive use of drones]

    Halligan, however, was blocked by senators who on the whole probably spoke less than two hours about Halligan. And their objections were incredibly lame. She’s received the ABA’s highest ranking for qualification and exceedingly strong support in the legal community, both conservatives and progressives.

    Republican senators have been obstructing the judicial nominations process ever since Obama first took office. The president was not able to appoint a judge to the D.C. Circuit during his first term because of Republicans’ obstinacy. There is simply a great desire among the Senate Republicans to keep as many vacancies open, especially on the powerful D.C. Circuit, for as long as possible. These obstructionists are beholden to a base that coddles the superrich and riles up a shrinking group, albeit loud and still influential, obsessed with keeping the courts packed with right-wing ideologues. Too many of those right-wing jurists help support state efforts to abolish abortion and make life much more difficult for those in the LGBT community and undocumented persons.

    The sham filibuster, which is the preferred tool of the Senate’s obstructionists, has become the norm. It has been used to halt consideration of policy such as efforts to confront climate change or address immigration reform; but it has most often been used to delay or kill executive branch or judicial branch nominations. Indeed, thanks to the sham filibuster, the Republicans have helped create more than 80 vacancies on the federal bench. In fact vacancies have hovered at 80 or above for much of Obama’s term. The Senate Republicans’ assault on the federal bench, serves their political purposes, but harms the judiciary and Americans who rely on the courts to uphold constitutional rights and seek redress of grievances. A federal bench burdened with fewer judges and larger caseloads is no way for the judiciary to function.